Copy of Letter to Chief Judge Brown from Judge Gewin RE: Dissent

    nited States Corel of Appeals 

FIFTH CIRCUIT 

EDWARD W. WADSWORTH OFFICE OF THE CLERK ROOM 408-400 ROYAL ST. 
CLERK NEW ORLEANS, LA. 70130 

October 9, 1969 

TO ALL COUNSEL OF RECORD 

No. 28030 - Beatrice Alexander, Et Al -vs- The 

Holmes County Board of Education, Et Al 
No. 28042 - United States of America -vs- Hinds 

County School Board, Et Al 

Gentlemen: 

Enclosed is a copy of a letter to Chief Judge 
John R. Brown from Judge Walter P. Gewin dated 
September 5, 1968, which Judge Gewin has directed 
be filed and made a part of the permanent records 
of this case, with the approval of the Judicial 

Council and the full consent of the panel members. 

A copy of this letter is also being forwarded 
to the Clerk of the Supreme Court as a supplement 
to the record. 

Very truly yours, 

EDWARD W. WADSWORTH 

Clerk 

“Gilbert ¥. Ganucheau 
Chief Deputy Clerk 

  

GFG/11c 

Enclosure  



@ L 
Hnited States Court of Appeals 

Fifth Judicial Civeuit 

alter J. Gein 

Girend Fudge September 5, 1969 
3.0. Box 1488 

Cusenloosa, Alnban 35401 

Honorable John R. Brown 

Chief Judge : 

Houston, Texas EDWA, RD w, WADSWORTH 
: y : CLERK: 
Re: United States v. Hinds County RE 

Dear Judge Browns: 

With some reluctance I write this letter to you as 

Chief Judge and as presiding judge of the panel which 

rendered the several decisions in the above captioned case. 

For the information of the other Judges I wish to state 

that I have discussed the matter with you and with Judges 

Thornberry and Morgan. It is clear to me that the panel 

shares the concern expressed in this letter. 

In the very beginning please understand that I do 

not wish to criticize the panel--only to disagree with it. 

Surely you have had a most difficult task. My only purpose 

is to register my profound disagreement with the course of 

action taken and I wish to do it in the simplest and most 

unabrasive manner possible. No party litigant-~-not even 

the Government--should be able to deal with the courts on 

an ex parte basis as was apparently done in this case. 

In my view the difficulty arises from the fact that 

the United States, a plaintiff-appellant, in this case 

as well as a prominent and constant litigant in this court, 

bypassed this court and directly impoxrtuned the trial judges 

of the Southern District of Mississippi sitting en banc to 

disregard the opinion and judgment of this court. They 

were the judges involved in the appeal. Obviously, I refer 

to the letter of Secretary Finch to Judges Cox, Russell 

and Nixon. 

   



[J 

Hon. John R. Brown September 5, 1969 

It is understood that notice was given to you as 
Chief Judge or as presiding judge of the panel by sending 
to you a copy of the letter sent to the trial judges. 
However, no notice was given by the Secretary to Judges 
Thornberry and Morgan, the other panel members, or to other 
parties litigant. Apparently, leave or permission to 
engage in such procedure was not sought; and of course, no 
such leave or permission was granted. Indeed, it is difficult 
to imagine that the court would have authorized such procedure 
if it had been requested to do so. 

The tactics employed resulted in success in achieving 
the changes sought by the United States as plaintiff-appellant, 

The orders and decrees of the court seem to indicate that 
this maneuver by this litigant finally received the acquiescence 
of the court. Without explanation, an impartial observer 
would be justified in concluding that the procedures employed 
received the blessing of the court. I refer here to the motion 
filed by the Government on August 21, three days after the 

date of the letter of Secretary Finch, the recognition 

accorded the letter by the per curiam pronouncement dated August 
20, and the final amended opinion dated August 28, 1969. 
This motion in support of the action proposed by the letter 

was filed by the Chief of the Civil Rights Section of the 

Justice Department. 

Unless otherwise provided by statute (e.g., the allowance 
of sixty days in which to appeal), the Government should be 

treated as any other litigant. Indeed, it is the largest, 

most powerful and most active litigant of them all. This 

single fact brings into sharp focus the unavailing opposition 

of the private plaintiffs-appellants. In their motion 

opposing the Government, these private parties assert that 

their information as to what was being done came by newspaper 

reports. They allege as a fact that "time is of the essence" 

and that the private plaintiffs-appellants "have never been 

served with any papers." It is further alleged in their 
opposition that the private plaintiffs-appellants "understand 

     



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Hon. John R. Brown September 5, 1969 

from newspaper reports" that Secretary Finch "has approached 
this court on an ex parte basis , . ." (emphasis in original). 
Needless to say, these parties were represented by counsel 
of record in this court. 

I am quite aware of the fact that the original opinion 

of the court directed the Department of Health, Education 

and Welfare to work with the Boards of Education. This 
fact, in my view, did not confer a license which would permit 
the Government to engage in the conduct involved. Moreover, 
I seriously doubt that any member of this court would ever 
possess the temerity necessary to ask a district judge to 
disregard the mandate of a panel of the court. 

Based on the foreging facts, serious questions of due 

process and equal protection arise. The procedure employed, 

in my view, cannot comport with fairness, impartiality and 

orderliness as required by these constitutional principles, 

The basic premise of my thinking is anchored to the 

following statement by Mr. Justice Frankfurter: 

"The history of liberty has largely been the 

history of observance of procedural safeguards," 

I do not write to the merits of the case. It is entirely 

likely that Mississippi needed some additional time. My 

concern is only with the means employed by the Secretary 

and the apparent acquiescence by the court. 

It appears to me that the only way I will be able to 

register my disagreement for the record is to request an 

en banc hearing. If any member of the court can suggest 

a different procedure, I will be happy to give it full 
consideration. Additionally, it may be that I have a 

misconception of the seriousness of this case. 

welcome a correction, 

WPG: 1jx 

cc: All Active Judges 

  
  

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